Constitutional Criminal Procedure and Due Process

Constitutional Criminal Procedure and Due Process

U.S. v. Thorpe, 471 F.3d 652 (2006)

CRJ420 – Criminal Justice and the Constitution

Colorado State University Global

According to Joel Samaha (2018), due process “guarantees fair procedures for deciding cases”. Many of the Amendments found in the Bill of Rights, as some experts will say, list some of these fair procedures that U.S. citizens are guaranteed. The Fifth and Fourteenth Amendment both contain a due process clause; both say to the federal government that no one shall be “deprived of life, liberty or property without due process of law” (Strauss, n.d.). Although these clauses’ are in place, it is not uncommon for an individual to have their due process rights violated. When this happens, it is typically because there was some kind of discrimination based on race, ethnicity, or gender. In U.S. v. Thorpe, 471 F.3d 652 (2006), James Thorpe, a convicted felon, was indicted on possession of a firearm. Thorpe felt that he was being discriminated against via selective prosecution.

U.S. v. THORPE, 471 F.3d 652 (2006)

In March of 2003, Detroit Police responded to a call about an individual in a Ford Taurus with a gun parked at a gas station. After the police had arrived at the gas station, they noticed an African American male sleeping in the driver’s seat of the car with a .380 automatic handgun “inches from his hand”, U.S. v. Thorpe, 471 F.3d 652, 655 (6th Cir. 2006). The man in the car was identified as James Thorpe, a previously convicted felon, and he was arrested at the scene. According to one of the arresting officers, “Thorpe voluntarily exclaimed “I knew the gun was in there, but I just didn’t take it out”, U.S. v. Thorpe, 471 F.3d 652, 655 (6th Cir. 2006).


James Thorpe was prosecuted by the U.S. Attorney’s Office in accordance with the Project Safe Neighborhood (PSN) program (Samaha, 2018). The PSN program was implemented with the intent to encourage state and federal law enforcement agencies to work together to reduce “gun crime in America”, U.S. v. Thorpe, 471 F.3d 652, 655 (6th Cir. 2006). Thorpe had filed a motion to dismiss his indictment, alleging that the implementation of PSN had resulted in selective prosecution based on race (Samaha, 2018); this would be a violation of the Fourteenth Amendment’s Equal Protection Clause. Thorpe was authorized by the court to use government funds to investigate his claim. After a hearing about his motion to dismiss, but before the court had reached a decision, Thorpe filed a separate motion for discovery in regard to his investigation. Thorpe submitted several statistical reports as support for his motion. The reports contained information regarding the rates of prosecution of firearm offenses and the rates of imprisonment of individuals convicted of firearm offenses; the racial composition of all of the counties in Michigan; and reports from the Federal Defender’s Offices documenting the race of defendants “pending firearm cases with state origin” (Samaha, 2018).

Of the reports submitted, the most pertinent ones came from the Federal Defender’s Offices in Detroit and Flint, Michigan (Samaha, 2018). The reports from those offices revealed that approximately 88% of pending firearm cases involved African American defendants. Unfortunately, this information proved insufficient in establishing Thorpe’s claim. Thorpe’s next move was a request asking the district court to order the government to disclose all of their records regarding PSN. This was not the first time the government had been ordered to disclose information about PSN, and when ordered again the government initially refused (Samaha, 2018). The court ordered that the government show cause as to why they should not be held in contempt for failing to comply, and with this the government partially gave in and submitted some of the same documents they had submitted for a previous case. The district court invoked its “supervisory powers” and dismissed with prejudice the indictment against Thorpe.


Not every defendant will be treated the exact same way in court; law enforcement professionals should remain as reasonable as possible throughout the entire process, from first response to sentencing. In the case of James Thorpe, he tried very hard to prove that law enforcement and court officials were denying him his equal rights; he needed to prove the discriminatory effect and its purpose. The Project Safe Neighborhood program appeared to be very discriminatory towards African American males and Thorpe wanted to make that apparent to the court. By submitting the statistical reports, Thorpe could show that he was being unfairly prosecuted because of his race. If he is able to convince the court that discrimination was happening in the PSN program then it would mean that he was denied due process.

Thorpe did try vehemently to push this point but the thing that really helped him in the end was presumption of regularity. Presumption of regularity is defined as “a principle applied in evidentiary evaluation that transactions made in the normal course of business are assumed to have been conducted in the usual manner unless there is evidence to prove otherwise” (US Legal, Inc., n.d.). Thorpe was able to prove that the government withheld documents that they had been ordered to submit. In addition to this, the government also failed to comply with the courts initial order, denying Thorpe equal protection and due process.

As stated before, due process is mentioned in the Constitution twice; due process clauses can be found in the Fifth Amendment and the Fourteenth Amendment. Both of these amendments guarantee that nobody shall be “deprived of life, liberty, or property without due process of law” (Strauss, n.d.). The Fifth Amendment established a number of rights guaranteed to U.S. citizens: the right to a jury, protection against self-incrimination, and, most important to Thorpe’s case, that no one will be denied their liberty. When the government withheld documents, they denied Thorpe a fair chance at protecting his liberty.

Like the Fifth Amendment, the Fourteenth Amendment mentions due process, but unlike the Fifth, the Fourteenth states that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws” (U.S. Const. amend. XIV). The Fifth Amendment protects individuals from the federal government; the Fourteenth Amendment protects individuals from the actions of state and local governments.


The United States grants many rights and protections to its citizens. There seems to be a countless amount of rights afforded before, during and after all criminal proceedings, yet it can still be extremely challenging for individuals to prove that they have not been afforded the same rights and protections as others. Thorpe did break the law by having that firearm with him in that vehicle and he clearly knew that he was not to be in possession of any firearm as a felon. Because he was prosecuted through a Department of Justice initiative, one which relied on state and federal law enforcement interventions, Thorpe was able to show that his due process and equal protection rights were violated, causing the court to overturn his indictment.


Samaha, J. (2018). Criminal procedure (10th ed.). Boston, MA: Cengage Learning.

Strauss, P. (n.d.). Due Process. Retrieved March 21, 2020, from

U.S. Const. amend. XIV.

US Legal, Inc. (n.d.). Presumption of Regularity Law and Legal Definition. Retrieved March 22, 2020, from

U.S. v. Thorpe, 471 F.3d 652, 655 6th Cir. 2006

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